Opinion
03-CV-6084 (JG).
October 19, 2004
RANDALL D. UNGER, ESQ., Bayside, New York, Attorney for Petitioner.
CHARLES J. HYNES, Kings County District Attorney, Brooklyn, New York By: Cynthia Kean, Assistant District Attorney Attorneys for Respondent.
MEMORANDUM AND ORDER
Petitioner Yang Hao Lu, appearing pro se, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction for kidnapping. For the reasons set forth below, the petition is denied as time-barred, procedurally barred and without merit.
BACKGROUND
The evidence at trial established that in the early morning hours of July 25, 1995, Lu and three other men forced their way into a Brooklyn apartment. Lu forced the six occupants of the apartment to kneel, then he tied their hands and covered their eyes and mouths with duct tape.Lu and his cohorts stole various items from the apartment, and they also kidnapped two of its occupants. Those victims, one of whom was female, were held for ransom for 14 days, most of which they spent handcuffed in a closet. On three occasions during that period, Lu raped and beat the female victim.
On August 7, 1995, the victims were rescued by the police. Lu and the others were charged with conspiracy in the second degree, kidnapping, rape, robbery, sodomy, sexual abuse, burglary, unlawful imprisonment in the first degree, criminal possession of a weapon and criminal facilitation. Lu was convicted after a jury trial of three counts of kidnapping in the first degree. He was sentenced to three consecutive indeterminate terms of imprisonment of 25 years to life.
On his direct appeal in state court, Lu argued that he was denied a fair trial in that (1) the indictment did not conform to the testimony; (2) the trial court incorrectly marshaled the evidence; and (3) the prosecutor committed misconduct during trial (by, inter alia, asking leading questions of the complainant) and in summation. He also challenged his sentence as excessive.
On June 12, 2000, the Appellate Division, Second Department, affirmed Lu's convictions. People v. Lu, 710 N.Y.S.2d 544 (2d Dep't 2000). It rejected as both unpreserved and without merit the claim of prosecutorial misconduct in summation. It found no error in the leading questions posed to the complainant by the prosecutor, given the complainant's language difficulties. The sentence was found to be permissible, and the remaining challenges were rejected as either unpreserved for appellate review or lacking in merit. Id.
By letter dated July 20, 2000, Lu's appellate counsel, Elizabeth S. Ostrow, Esq., informed him that she would seek leave to appeal to the New York Court of Appeals. But Ostrow failed to file a leave application. More than two years later, on September 3, 2002, Lu wrote to the New York Court of Appeals to inquire about his leave application, and he was informed by letter dated September 10, 2002, that no such application had been filed.
Ostrow's letter stated as follows:
I have just received and enclose a copy of the Decision Order of the Appellate Division, Second Department, affirming the judgment of conviction. I am now preparing an application for leave to appeal to the New York Court of Appeals, the highest court in the State of New York. That Court will make a decision as to whether they will review the decision of the Second Department. I will keep you posted of developments.
(Pet. Ex. I.)
In papers dated September 17, 2002, Ostrow filed a motion pursuant to CPL § 460.30 for an order extending Lu's time to move for leave to appeal. Rather than admit her mistake, Ostrow gave the following misleading explanation for her failure to file the leave application two years earlier:
Defendant/Appellant is a Chinese national who speaks no English. Your Affirmant speaks no Chinese. Indeed, the Second Department recognized Appellant's language difficulty ("In light of the language difficulty displayed by the complainant, which was noted by the trial court. . . ."). Due to your Affirmant's inability to communicate with Defendant/Appellant in a meaningful fashion, confusion existed regarding the undersigned's continued representation of Defendant/Appellant after resolution of his appeal to the Appellant Division, Second Department, and whether an application for leave to appeal should be filed. Due to this inability to communicate, an application for leave to appeal pursuant to Criminal Procedure Law § 460.20 was never timely filed.
Of course, the Appellate Division was referring to the complainant's language difficulties, not Lu's. More to the point, there had not been any "confusion" about Ostrow's "continued representation" of Lu; she simply failed to fulfill her obligation to her client. Ostrow has been sanctioned by the disciplinary authorities for her conduct in the case.
That motion was denied as untimely on October 15, 2002.
More than a year later, on November 24, 2003, Lu filed the instant petition. In the petition, he advances the same arguments his counsel raised on direct appeal, and also asserts that he received ineffective assistance of trial counsel.
DISCUSSION
A. The Statute of Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), signed into law on April 24, 1996, provides in relevant part that:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d); see also Lindh v. Murphy, 521 U.S. 320, 327 (1997) (§ 2244 applies "to the general run of habeas cases . . . when those cases had been filed after the date of [AEDPA]").
As in most cases, the one-year period of limitation in this case ran from the date on which the state court's judgment of conviction became final. Lu was convicted on May 2, 1997. On June 12, 2000, the Appellate Division affirmed Lu's conviction. People v. Lu, 710 N.Y.S.2d 544 (2d Dep't 2000). Under New York law, a criminal defendant has thirty days from service of a copy of an Appellate Division order to seek leave to appeal that order to the Court of Appeals. N.Y. Crim. Proc. Law § 460.20(5)(a). Lu's attorney mailed him a copy of the Appellate Division's order on July 20, 2000. Assuming the passage of thirty days from that date, plus a reasonable allowance of time for mailing, Lu's conviction became final, at the latest, on or about August 24, 2000. See Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000) (conviction becomes final day after time to appeal expires); Jones v. Dep't of Corrections, 216 F.R.D. 237, 238 (E.D.N.Y. 2003) (because petitioner filed no appeal from conviction, his conviction became final after the time period for appeal pursuant to New York law had expired). Thus, the limitations period for the filing of Lu's habeas petition expired on August 24, 2001, making Lu's filing of his petition in this Court untimely by more than two years unless he is entitled to equitable tolling.
Equitable tolling is appropriate only in "rare and exceptional circumstances." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)). "To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Id. To establish "extraordinary circumstances," a petitioner "must `demonstrate a causal relationship between the extraordinary circumstances . . . and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances.'" Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)).
Lu seeks equitable tolling based on the malfeasance of his appellate counsel. Counsel informed Lu by letter dated July 20, 2000, that she would seek leave to appeal to the New York Court of Appeals. She failed to do so. As stated above, on September 3, 2002, Lu wrote to the Court of Appeals to inquire about his leave application. After the Court of Appeals responded that no leave application had been filed, Lu's appellate attorney filed a motion for an order extending Lu's time to seek leave to appeal. The court denied this application as untimely on October 15, 2002. On November 24, 2003, Lu filed the instant petition for writ of habeas corpus.
Respondent states that Lu filed his petition on November 26, 2003. Because Lu's petition is dated November 24, 2003, I assume that he gave his papers to prison officials for forwarding to this Court on that date, and thus the papers are deemed to have been filed on that date. See, e.g., Houston v. Lack, 487 U.S. 266, 270 (1988); Hughes v. Irvin, 967 F. Supp. 775, 778 (E.D.N.Y. 1997).
As a general rule, attorney error does not constitute an extraordinary circumstance warranting equitable tolling. Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (tolling inappropriate where petitioner's attorney erroneously believed that a properly filed petition for state post-conviction relief recommenced, rather than merely tolled, the one-year period); see also Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000) (attorney's misunderstanding of the period for which a claim remained "pending" did not warrant equitable tolling). However, despite Smaldone and Geraci, the actions of a petitioner's attorney can, in an appropriate case, warrant equitable tolling. See Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003). In Baldayaque, the court found the attorney's actions to be sufficiently extraordinary where he failed to file a § 2255 petition despite being directed to do so by his client; did no legal research on the case; failed to demonstrate reasonable thoroughness and sufficient preparation; failed to speak to, meet, or make any effort to locate his client; failed to keep his client reasonably informed; and failed to explain the issues sufficiently to allow his client to make informed decisions. See Baldayaque, 338 F.3d at 152. Given conduct that egregious, the court held, tolling would be appropriate if the petitioner further demonstrated that the attorney's extraordinary misbehavior actually prevented the filing of a timely petition. See Baldayaque, 338 F.3d at 153.
The latter aspect of Baldayaque's holding illustrates the significance of causation. The Second Circuit has made it clear that even where the circumstances qualify as extraordinary, equitable tolling will not be warranted unless they actually prevented a timely filing of the petition. Another example is Hizbullahankhamon v. Walker, 255 F.3d 65 (2d Cir. 2001), where the petitioner was in solitary confinement, without access to his legal materials or the law library, for the first 22 days of the one-year limitations period. The court held that even assuming those circumstances were sufficiently extraordinary, it could not "plausibly be said that, but for those 22 days at the very beginning of the one-year limitations period during which petitioner was allegedly denied access to legal materials, he would have been able to file his petition within the one-year limitations period." Id. at 76.
The foregoing discussion is borrowed from G. Mehler, J. Gleeson and D. James, Federal Criminal Practice: A Second Circuit Handbook, § 19A-3(c) at 336-37 (Matthew Bender 2004).
There is an insufficient relationship between Ostrow's conduct and the untimely filing of Lu's petition to warrant equitable tolling. It cannot reasonably be said that, but for the approximately two-year delay caused by the failure to seek leave to appeal, Lu acted in a timely fashion. That is because Lu waited more than a year to file his petition even after learning, by order dated October 15, 2002, that the New York Court of Appeals had denied the belated application to extend the time to seek leave to appeal. Indeed, putting aside the tolling issue, Lu's petition would have been untimely even if the limitations period had commenced on October 15, 2002. He offers no persuasive argument to the contrary. Accordingly, I need not address the question whether Lu was sufficiently diligent between the Appellate Division's affirmance of his conviction in June 2000 and his letter to the Court of Appeals 26 months later. His petition is untimely in any event, and is denied on that ground.
Lu's counsel contended at oral argument that Lu's lack of command of the English language should excuse this delay from October 15, 2002 to November 24, 2003. That argument has no merit, see, e.g., German v. United States, 209 F. Supp.2d 288, 293 (S.D.N.Y. 2003), particularly since Lu had the assistance of others when he wrote to the Court of Appeals in September 2002.
B. Procedural Bar
Putting aside the untimeliness of Lu's claims, they are procedurally barred as well. His efforts to exhaust those claims in state court were denied by the Court of Appeals as untimely. Lu's counsel conceded the procedural default at oral argument.
A defaulted claim will be considered by a habeas court upon a showing of cause and prejudice. See Coleman v. Thompson, 501 U.S. 722, 749-50 (1991); Teague v. Lane, 489 U.S. 288, 298 (1989). A petitioner may establish cause by showing "`that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials . . . made compliance impracticable.'" Coleman, 501 U.S. at 753 (ellipses in original) (quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (quotation marks omitted). If the petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim, i.e., "that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)).
Here, Lu has not demonstrated either cause or prejudice. He asserts that Ostrow's ineffective assistance of appellate counsel constitutes cause, but that argument fails for two reasons. First, in order to constitute cause, an ineffective assistance claim must itself be exhausted, see Edwards v. Carpenter, 529 U.S. 446, 453 (2000). Even more problematic for Lu is the fact that there is no constitutional right to counsel for discretionary appeals, and thus the ineffective assistance of counsel of which Lu complains cannot constitute cause in any event. Coleman, 501 U.S. at 757; Chalk v. Kuhlmann, 311 F.3d 525, 528 (2d Cir. 2002). Nor has Lu demonstrated actual innocence. Thus, Lu is not entitled to the writ on this ground either.
The Court of Appeals has discretion to hear the type of appeal at issue here. See N.Y. Crim. Proc. Law § 460.20.
C. The Merits
Finally, Lu's claims lack merit. His principal claim — that he was charged with raping his victim twice, but the evidence revealed that he did it three times — is frivolous. There is no respect in which Lu was prejudiced by being charged with fewer rapes than he actually committed, and in any event he was convicted of kidnapping, not rape. Indeed, the jury never even considered the rape counts, having been instructed to do so only if it found Lu not guilty of kidnapping, conspiracy and robbery. As for ineffective assistance of trial counsel, Lu does not even attempt to establish a basis for his claim, and the record reveals no such basis. The challenge to the prosecutor's summation, which was rejected on procedural grounds by the Appellate Division, has no merit. Lu's other claims were rejected by the Appellate Division, whose determinations cannot reasonably be characterized as unreasonable applications of federal law.
CONCLUSION
For the foregoing reasons, the petition is denied, and Lu's motion for appointment of counsel is denied as well. Because Lu has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.So Ordered.